01973328
02-18-2000
Gloria Gormley, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Gloria Gormley v. Department of the Interior
01973328
February 18, 2000
Gloria Gormley, )
Complainant, )
)
v. ) Appeal No. 01973328
)
Bruce Babbitt, ) Agency No. LLM-95-082
Secretary, )
Department of the Interior, )
Agency. )
____________________________________)
DECISION
Gloria Gormley (complainant) filed an appeal with this Commission from
a final decision of the Department of the Interior, Bureau of Land
Management (hereinafter "BLM" or "agency") concerning her complaint of
unlawful employment discrimination, in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791
et seq.<1> Complainant's claim of discrimination, as defined by the
agency, is based upon her sex (female), race (White), national origin
(Hispanic), and disability (pregnancy), when:
In February, 1993, she assumed the duties of the Public Affairs Assistant,
and her supervisor never submitted a position description to personnel
to reflect the accretion of duties;
In May, 1993, she advised her supervisor that she was pregnant and the
supervisor said that she hoped it would not affect complainant's work
performance;
In May, 1993, her supervisor told her, "when I say you're going to do
something, you will do it;"
On February 8, 1994, she did not receive an "Outstanding" on her 1993
Performance Improvement and Position Review (PIPR);
In June, 1994, she advised her supervisor that she was pregnant, and
she said, "Don't you believe in birth control;"
In February, 1995, she received an unfair PIPR review and rating ("Fully
Successful") (level 3 rating) which she appealed, and the results of
the appeal were not provided to her until after she took the Voluntary
Separation Incentive Payment (buyout);
In February, 1995, her supervisor sent her a draft letter that was
eighteen (18) days late which resulted in her assignment being completed
late and reflected poorly on her performance; and
On April 3, 1995, she was forced to resign from her position with
the agency because of the harassment and discrimination that she was
subjected to from 1993 through 1995.
The appeal is accepted in accordance with EEOC Order No. 960.001.
Complainant sought EEO counseling on March 15, 1995. Following the
filing of a formal complaint and an investigation, complainant requested
an agency decision without a hearing. The agency issued a final agency
decision of no discrimination on February 13, 1997. It is this agency
decision which complainant now appeals.
Complainant was hired by the BLM in November, 1990. Her position at
the time was Secretary (Typing), GS-318-5, Office of the State Director,
Office of External Affairs, New Mexico State Office, Santa Fe, New Mexico.
In 1992, a new supervisor (female, White, non-Hispanic, no disability)
(S1) assumed first-line supervisor responsibilities over complainant
and all other employees under the GS-9 level.
Complainant alleges the following:<2> In February, 1993, S1 rated
complainant's performance for the period January, 1992 through
December, 1992 at a level 4 (Exceeds Fully Successful). Complainant
claims that, approximately 30 days following this rating, she assumed
the Public Affairs Assistant, GS-7 duties, in addition to her own
duties, because the individual previously performing those duties was
reassigned on March 7, 1993. Complainant asserts that S1 assured her
that as soon as she officially assumed the new duties S1 would resubmit
complainant's position description to personnel.
Complainant further asserts that in May, 1993, she advised S1 that she
was pregnant. In response, S1 allegedly stated that she hoped it would
not affect complainant's work performance and that she would not receive
preferential treatment. Complainant asserts that after she advised
S1 of her pregnancy, she began to receive adverse treatment which she
considered to be harassment.
For example, complainant asserts that a lower grade employee (C1)
(female, disability status unknown, national origin unknown, race unknown)
questioned complainant about taking a break. Complainant explained to
C1 that she informed the acting supervisor that she was taking a break.
C1 explained that she was in charge when S1 was absent. According to
complainant, C1 closely questioned and monitored her work. Complaint was
disturbed by this treatment coming from a co-worker. The following day,
S1 told complainant that the rules in the office were to be followed
and that there would be some changes made.
Two weeks later, C1 told complainant that S1 instructed her to make
a telephone call to the Public Affairs Specialist at the Farmington
District Office regarding photographs taken by the Public Affairs
Specialist. Complainant was asked to make the call because C1 and the
Public Affairs Specialist did not get along and previously engaged in a
verbal confrontation. Complainant states that after several calls back
and forth, she suggested that C1 call the Public Affairs Specialist
directly. Shortly thereafter, complainant asserts that S1 showed up
"out of control, viciously waving her finger" at complainant and said
"when I say you are going to do something, you will do it." Complainant
further asserts that S1 had a history of siding with C1 over any dispute.
Later in May, 1993, complainant miscarried. Complainant attributes the
miscarriage to the harassment that she was receiving at work.
On January 31, 1994, S1 rated complainant's PIPR for the period
January 1, 1993 through December 31, 1993 at a level 4 (Exceeds Fully
Successful). The PIPR noted that complainant was performing at an
Outstanding level from July, 1993 through December, 1993. In addition,
the PIPR noted that complainant's position description was not accurate
and did not reflect all of complainant's duties. The PIPR was ultimately
re-written to reflect all of complainant's responsibilities. However,
complainant notes that her position description was never rewritten.
According to complainant, in 1994, S1 limited the staff's opportunity
to earn credit hours to those circumstances where an employee was in
training or on special assignments. Complainant further asserts that
this new policy applied to all employees at the GS-9 level and lower,
but did not apply to S1.
Complainant further alleges that in May of 1994, she informed S1
that she was pregnant again. According to complainant, S1 responded,
"don't you believe in birth control?" Shortly thereafter, complainant
asserts that S1's attitude toward her changed again. Also in May,
1994, complainant asserts that S1 stated to her, "Hispanic women are
the laziest people I have ever worked with."
In June, 1994, complainant miscarried a second time. Again, she
attributed the miscarriage to the stress she was under at work which
was allegedly caused by the harassment and discriminatory treatment
toward her.
In January, 1995, complainant informed S1 and the staff that she was
pregnant again. Shortly thereafter, complainant asserts that she provided
one of her supervisors (S2) (female, American Indian, Cowlitz/Quinault,
no disability) a medical note from her physician which stated "Please
allow [complainant] to take off work whenever she feels cramping pressure,
due to pregnancy complications. She is under my care for prenatal care.
Her due date is 8/12/95."
Complainant further asserts that in February, 1995, S1 held onto a draft
document which needed revisions before forwarding it to complainant.
Accordingly, complainant received the draft 8-days after the due
date and submitted the final version to the Washington Office late.
Also in February, 1995, while complainant was on sick leave, S1 called
complainant's husband at work and asked him to relay a message to
complainant. Complainant and her husband did not have a home telephone.
S1 asked that complainant provide the passwords to the computer systems
that she accessed so that when she was absent from the office, the
supervisors/staff could have access to the computer system. In response,
complainant reminded her supervisors (S1 and S2) that she was trained
not to reveal personal/confidential passwords to anyone.
In March, 1995, complainant asserts that S2 called a meeting to discuss
her expectations of the External Affairs Staff. However, the majority
of the day was spent discussing complainant's duties with input from
the staff on how they felt her work was to be performed and the amount
of time they felt it should take complainant to perform the work.
Complainant felt singled out.
In late March, 1995, S2 and the Associate State Director (D1) met with
complainant to discuss her attendance. According to complainant, S2
explained that the Office of External Affairs could not function without
a full-time assistant at work each day. Accordingly, complainant was
given the option of either being at work each day or taking a leave of
absence until she could make the commitment to be at work each day.
On April 3, 1995, complainant took a Voluntary Separation and
Incentive Payment (Buyout) and resigned. Complainant alleges that the
discrimination and harassment which she incurred since April, 1993 forced
her to resign.
FINAL AGENCY DECISION
In its Final Agency Decision (FAD), the agency dismissed allegations 1, 2,
3, 4, and 5 for failure to contact an EEO Counselor in a timely manner.
The FAD also found that the continuing violation exception was not
applicable with respect to those allegations because they occurred
between February, 1993 and June, 1994, approximately seven months
prior to complainant's timely allegation (6). In addition, the FAD
determined that allegations 1-5 were not analogous or related to the
timely allegation (6). Specifically, the FAD found that allegation
6 pertains to an issue involving an alleged unfair Fully Successful
rating. By contrast, the FAD found allegation 1 involves complainant's
1993 position description and accretion of duties. Allegations 2 and
5 involves issues surrounding two pregnancies. Allegation 3 deals
with an alleged stern remark complainant's supervisor made regarding
subordination. Allegation 4 deals with complainant's dissatisfaction
with her level 4 (Exceeds Fully Successful) rating in February, 1994.
According to the FAD, these issues are either isolated or dissimilar in
certain instances with no discernable nexus or credible evidence to show
a pattern of discrimination as tied to complainant's timely allegation.
Lastly, the agency noted that the alleged incidents occurred under four
different management officials and/or supervisors.
In addition, the FAD also found allegations 2, 3, and 5 required dismissal
for failure to state a claim. With respect to allegations 7 and 8,
the FAD found that such allegations were never informally processed
(i.e. counseled) or raised during the informal EEO Counseling. Nor were
they investigated. Accordingly, the FAD directed the complainant to
contact an EEO Counselor and undergo informal EEO counseling on those
allegations.
With respect to the merits of allegation 6, the FAD found that complainant
failed to show that she was a qualified individual with a disability
within the meaning of the Rehabilitation Act. Accordingly, the FAD found
no discrimination with respect to disability. However, the FAD went on
to discuss complainant's pregnancy with respect to her sex discrimination
claim. The agency determined that complainant failed to establish a prima
facie case of sex, race, or national origin discrimination. Specifically,
the agency found that there were no similarly situated persons outside
complainant's protected classes who were rated by S1, in that complainant
was the only Staff Assistant in her office. The agency also noted that
two identified employees (both white, female, Hispanic, not pregnant)
were rated by S1. One employee (C2) (female, not pregnant, white,
Hispanic), who held a different position from complainant, received an
"Outstanding" rating for 1994 from S1. Another employee (C3) (female,
not pregnant, white, Hispanic), who also held a different position from
complainant, received a "Fully Successful" rating for 1994 from S1.
The agency also found that complainant failed to present a prima facie
case of discrimination with respect to the delayed receipt of the results
of complainant's appeal of her 1994 performance rating. Specifically,
the agency noted that complainant was the only individual who appealed her
performance rating. In addition, the agency noted that the record shows
that complainant was aware of the fact that the Review Panel's meeting
would not be able to take place until after her resignation date. Lastly,
the agency found that there was no evidence that management deliberately
or willfully, withheld or delayed results of complainant's appeal to
discriminate against her on account of her sex, race, or national origin.
ANALYSIS AND FINDINGS
As a preliminary matter we find that the agency improperly fragmented
complainant's claim. (See MD-110, as revised, November 9, 1999, pp. 5-5
through 5-9.) Based upon a review of the record we find complainant's
claims are properly framed as follows.
On the basis of her sex (female/pregnancy), disability (pregnancy),
race (White) and national origin (Hispanic), complainant was treated
differently in the terms and conditions of her employment between
February, 1993 and April, 1995, by management's attempt to thwart
complainant's opportunity for promotion; and
On the basis of her sex (female/pregnancy), disability (pregnancy), race
(White) and national origin (Hispanic), between February, 1993 and April,
1995, complainant was subjected to a hostile work environment which
ultimately led to her constructive discharge.
The agency argues that complainant's allegations previously numbered
7 and 8 were not formally processed (ie. not raised in the initial
counseling and not investigated). Accordingly, the agency failed to
address these claims in its FAD. While allegations 7 and 8 were not
raised in the initial EEO counselor contact, they are sufficiently like
or related to the complainant's original claims that they should have
been formally added to complainant's complaint at any time prior to
the agency's mailing of the notice required under 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.108(f). See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.106). While the agency
failed to formally amend the complaint, contrary to the agency, we find
the record appropriately developed on all issues, including allegations
formerly numbered as 7 and 8, in accordance with 29 C.F.R. � 1614.108(b).
Lastly, while the FAD advises the complainant to contact an EEO counselor
and undergo informal counseling with respect to allegations formerly
numbered as 7 and 8, there is no evidence in the record, or otherwise,
that complainant pursued this option. Accordingly, we shall include
allegations formally numbered as 7 and 8 in our analysis of the merits
of complainant's claims as re-framed supra.
Continuing Violation
We find that the various allegations were improperly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(2). Each claim, as re-defined supra, has a
timely incident (i.e., the February, 1995 unfair PIPR review (Claim 1)
and the April, 1995 constructive discharge (Claim 2)). The remaining
incidents pertaining to Claims 1 and 2 are interrelated by a common
nexus and sufficiently associated with or connected to the subject matter
and temporal scope of the complaint. See Howard-Grayson v. USPS, EEOC
Request No. 05990160 (December 3, 1999). Accordingly, we find that the
continuing violation exception applies herein.
Failure to State a Claim Dismissals
We find that the agency also improperly dismissed allegations formerly
numbered as 2, 3, and 5 because it improperly fragmented the claims.
Disparate Treatment and Hostile Work Environment
While the agency improperly fragmented and dismissed portions of
complainant's claim, we nevertheless AFFIRM the agency's finding of
no discrimination.
As a preliminary matter, for the purpose of this decision, we assume
arguendo, that complainant is a qualified individual with a disability.
ClAIM 1 � ALLEGED DISPARATE TREATMENT WITH RESPECT TO PROMOTION
OPPORTUNITIES
Prima Facie Case
While we find that: (1) complainant has failed to identify comparable
individuals outside her protected classes who received more favorable
treatment; and (2) the record does not support complainant's assertions
that S1 made derogatory comments regarding her pregnancy and Hispanics,<3>
we nevertheless assume, for the purpose of this decision, that complainant
has presented a prima facie case of disability, race, national origin
and sex discrimination.
Legitimate, Non-discriminatory Reasons for the Agency's Employment
Actions
We also find that responsible management officials articulated legitimate,
non-discriminatory reasons for their employment actions as follows:
Revision of Complainant's Position Description
According to S1, she spoke with S3 about the subject of complainant's
revised position description. While S1 did not remember the reason
given by S3, she remembered that S3 did not approve further processing of
complainant's rewritten position description. While S1 was not sure that
complainant's accrued duties would have warranted a promotion, she did not
think there was any harm in processing the request if S3 had approved it.
S3 testified that he did not remember S1 approaching him with a request
to promote complainant. However, if she did, S3 affirmed that he may
have tabled the request until plans were finalized for the restructuring
of the office. The planning started in 1992 and was not finalized until
July, 1994. S3 further affirmed that he never told S1 to forget putting
complainant in for a promotion. Furthermore, S3 stated that had S1
submitted a formal request to upgrade complainant's position, he would
have submitted it to Personnel for their action, since the decision to
upgrade a position would have been ultimately decided by that office.
1993 Performance Evaluation Received in January, 1994
While S1 noted that complainant performed at an "Outstanding" level
for the latter six months of 1993, S1 believed that complainant did not
perform at that level during the first six months. Therefore, S1 did
not believe that an "Outstanding" rating was justified.
1994 Performance Evaluation Received in January, 1995
Based upon the documentary evidence and testimony of S1, D1,<4> and
S2, the record indicates that complainant's performance during 1994
was unacceptable. (See Affidavits of S1, D1 and S2; April 4, 1995
memorandum from S1 to Personnel Management Specialist.) However, afraid
that complainant would be outraged by such a low performance rating,
S1 struggled with the decision between awarding complainant a rating of
"Exceeds Fully Successful" (level 4) or "Fully Successful" (level 3).
After advice from, inter alia, D1, S2, and an Employee Specialist,
S1 decided to give complainant a "Fully Successful" (level 3) rating.
General Position of the Responsible Management Officials
The record indicates that complainant was involved in a serious automobile
accident in 1991 where she suffered physical injuries and her child
and mother were fatally injured. Upon return to work, management went
out of their way to make things easier for complainant (i.e., gave
complainant greater flexibility in her work hours, reassigning the more
complex work to other staff members to alleviate stress for complainant,
permitting complainant to take her other child to work and to take her
to physical therapy).
The record further supports the finding that the entire staff and
management officials fully supported complainant during her pregnancies
and when she was recovering from her miscarriages. As indicated,
supra, S2 categorically denies making any derogatory statements about
complainant's pregnancy. Moreover, S1 affirmed that she conveyed to
complainant that she was happy for her when she was informed of the
pregnancies. The record also indicates that during these periods,
complainant frequently was out on leave.
With respect to time and attendance issues, S1 advanced a lot of leave
to complainant and allowed her to use credit hours as well. The record
further shows that S1 announced and reaffirmed the policy of obtaining
advanced approval before using credit hours in January, 1994 because
she had been in the position of having to approve credit hours when she
did not know if the hours were legitimate. The record shows that this
policy applied equally to all staff.
S1 also denies monitoring any of the employees' time or having anyone
monitor the staff for her. According to S1, as long as the work got done,
it did not bother her that staff members were late. The record shows
that the office adopted the idea to make a game of being late by paying
25 cents to a pot (for pizza) whenever arriving or returning fifteen
minutes late. S1 explains that on one occasion complainant came back
from lunch very late and C1 joked with complainant that she would owe two
quarters that day since she was quite late. Complainant took offense
by C1's comment. The discussion resulted in both of them raising their
voices and crying.
On the days that complainant did not come in to work, her husband would
usually call S1 once he got to work since complainant and her husband
did not have a home telephone. During complainant's last pregnancy,
the record shows that the staff was having problems accessing computer
information and completing tasks due to complainant's absence from
the office. Accordingly, complainant was asked to provide S2 with her
passwords to access the computer information. In an effort to determine
how to proceed while complainant was out of the office, S2 held a meeting
where it was discussed how complainant's work could be distributed to
others on the staff and how it could be accomplished more efficiently.
S1 denies ever intentionally delaying the processing of assignments to
complainant in order for her to look bad. S1 affirmed that she did not
talk to S2 about any problems with complainant's timeliness of work.
With respect to the specific assertion by complainant, S1 stated that
complainant is not considering that the response time was ten work days
rather than calendar days and that the specific period referred to by
complainant covered weekends and a holiday.
The record indicates that no management official, including S1, had
any involvement in complainant's decision to take the buyout. S1 even
encouraged complainant, in January, 1995, about utilizing the Family
Medical Leave Act (FMLA), suggesting that complainant consider using it
on a part-time basis.
Pretext
In addition to allegations which we have found unsubstantiated by
the preponderance of the evidence, complainant argues essentially
that two discrepancies exist with respect to S1's statements and the
record evidence which show that S1 acted with discriminatory animus.
The first alleged inconsistency pertains to the explanation given for
the failure to process complainant's re-written position description.
The record reflects that S1 stated that she spoke with S3 about the
subject of complainant's revised position description soon after she
received the draft from complainant. While S1 did not remember the
reason given by S3, she remembered that S3 did not approve further
processing of complainant's rewritten position description. S3, however,
testified that he did not remember S1 approaching him with a request to
promote complainant. However, if she did, S3 affirmed that he may have
tabled the request until plans were finalized for the restructuring of
the office since it was anticipated that after the restructuring many
position descriptions would need to be revised. The planning started
in 1992 and was not finalized until July, 1994. S3 further affirmed
that he never told S1 to forget putting complainant in for a promotion.
Furthermore, S3 stated that had S1 submitted a formal request to upgrade
complainant's position, he would have submitted it to Personnel for
their action, since the decision to upgrade a position would have been
ultimately decided by that office. We disagree with complainant and
do not find S1 and S3's testimony contradictory. Nor do we find such
testimony proof that S1 never intended to submit complainant's revised
position description to Personnel.
Upon review of the record as a whole, even assuming that complainant could
show that S1 never intended to submit her revised position description
to Personnel, the evidence does not support discriminatory animus as
the motive for such conduct.
The second alleged inconsistency raised by complainant pertains to
her 1993 PIPR rating where she received a "Fully Successful" (level 4)
rating rather than an "Outstanding" (level 5) rating. In that performance
review, S1 noted that complainant performed at the "Outstanding" level
for six months of that year and that continued performance for a full 12
months would warrant the "Outstanding" rating. Complainant contends that
she was the only employee that was held to such a standard, but could only
identify one individual who was treated more favorably. Specifically,
complainant notes that a co-worker (C4) (Female, White, Hispanic)
received an "Outstanding" rating for her 1992 PIPR after only 8 months
of government service. In addition,C4 received an "Outstanding" rating
in 1994, despite the fact that she detailed for two months during the
year 1994.
While there is no explanation in the record for the seemingly difference
in treatment between complainant and C4, we do not find this action
evidence of discriminatory animus since C4 is a member of complainant's
protected classes and complainant repeatedly asserts that S1 held a
personal bias in favor of C4 over the entire staff.
Accordingly, we do not find that complainant presented sufficient evidence
to prove pretext or discriminatory animus with respect to her disparate
treatment claim.
ClAIM 2 � ALLEGED HOSTILE WORK ENVIRONMENT RESULTING IN CONSTRUCTIVE
DISCHARGE
Harassment is actionable if it "had the purpose or effect of unreasonably
interfering with [complainant's] work performance and/or creating an
intimidating, hostile, or offensive work environment." See McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August
5, 1999).
In the instant case, complainant alleges that she was harassed by S1
when, inter alia, her work duties and time in and out of the office
were closely monitored on a daily basis; and she was treated more
harshly and unprofessionally by her supervisor than other employees.
Assuming complainant's allegations state a claim of harassment, we find
the record reveals that the incidents described by complainant amount to
common workplace occurrences. Furthermore, we find that complainant has
failed to prove, by a preponderance of the evidence, that the employment
actions were somehow abusive or reasonably offensive, and were taken in
order to harass complainant on the basis of any of her protected classes.
See Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(July 23, 1998); See also, Long v. Veterans Administration, EEOC Appeal
No. 01950169 (August 14, 1997). Since complainant has failed to prove
a Title VII violation, her constructive discharge claim must also fail.
Without addressing each and every incident cited by complainant, we find
that the record as a whole fails to support a finding of discrimination on
the basis of disability, race, sex, and national origin. Since appellant
presents no new or persuasive arguments on appeal, we discern no basis
to reverse the agency's finding of no discrimination. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
2/18/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
2/18/00
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999) where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.
2 Complainant disputes most of the contents of her affidavit which
the investigator provided following an interview of complainant, but
has provided a supplemental statement for the record. Accordingly, the
Commission has disregarded the contested affidavit and instead considers
the supplement statement in its place.
3 While complainant has alleged that S1 made disturbing comments
to her such as "don't you believe in birth control," and "Hispanic
women are lazy," we find that the preponderance of record fails to
support complainant's allegation. S1 categorically denies making any
derogatory statement regarding complainant's pregnancy or Hispanic women.
In addition, despite complainant's assertions, none of the witnesses
identified by complainant confirmed hearing S1 make such statements.
Moreover, many of the witnesses found it unlikely that the alleged
statements were made by S1. It should be noted that complainant failed
to request a hearing at which the credibility of the witnesses could
have been explored.
4 D1 was the Reviewing Approving Official for complainant's 1994 PIPR.